United States v. Vichitvongsa

United States District Court, M.D. Tennessee, Nashville Division

November 20, 2014

UNITED STATES OF AMERICAv.MANILA VICHITVONGSA

ORDER

TODD J. CAMPBELL, District Judge.

Pending before the Court are the Defendant's Motion For Judgment Of Acquittal (Docket No. 794), as well as the Government's Response (Docket Nos. 812) in opposition. For the reasons set forth herein, the Motion is DENIED.

After a week-long trial, the Defendant was convicted of certain crimes arising out of two separate home invasion robberies - the first, occurring on June 10, 2011 in Lavergne, Tennessee, and the second, occurring on June 27, 2011 in Elmwood, Tennessee. (Docket Nos. 78, 730, 732). Through the pending Motion, the Defendant argues that he is entitled to an acquittal of his convictions under Rule 29(c)(1) of the Federal Rules of Criminal Procedure because the Government failed to establish proof sufficient to sustain the convictions.

In reviewing a motion for a judgment of acquittal under Rule 29(c) of the Federal Rules of Criminal Procedure, a court must view the evidence in the light most favorable to the Government, and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. United States v. Welch, 97 F.3d 142, 148 (6th Cir. 1996); Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The court may not independently weigh the evidence, nor judge the credibility of the witnesses who testified at trial. Id.

Specifically, the Defendant argues that: (1) the Government failed to establish the four separate conspiracies charged in the Indictment, and therefore, under the Double Jeopardy Clause, he should be acquitted of all but one conspiracy count; (2) his four convictions under 18 U.S.C. § 924(c) violate the Double Jeopardy Clause; and (3) the Government failed to prove that the two home invasion robberies affected interstate commerce, the jurisdictional nexus required by 18 U.S.C. § 1951.

In connection with each home invasion robbery, the Indictment charged the Defendant with a conspiracy to commit Hobbs Act robbery, in violation of 18 U.S.C. § 1951, and a conspiracy to engage in drug trafficking, in violation of 21 U.S.C. § 846. (Docket No. 78). The Defendant contends that the proof at trial did not establish four separate conspiracies.

The Double Jeopardy Clause prohibits multiple prosecutions for the same offense. With regard to the crime of conspiracy, the Sixth Circuit has adopted a "totality of the circumstances" test to determine whether the allegations in an indictment support a conviction of more than one conspiracy. United States v. Sinito, 723 F.2d 1250, 1256 (6th Cir. 1983). The test requires the court to consider the following elements: (1) time; (2) persons acting as co-conspirators; (3) the statutory offenses charged in the indictments; (4) the overt acts charged by the government or any other description of the offenses charged which indicates the nature and scope of the activity which the government sought to punish in each case; and (5) places where the events alleged as part of the conspiracy took place. Id. Where several of these factors differ between the conspiracies, the court has explained, the conclusion follows that the alleged conspiracies are separate and distinct offenses. Id., at 1257. See also United States v. Kistner, 2014 WL 5438810, *3-4 (6th Cir. Oct. 28, 2014).

As the Defendant's challenge is made post-trial, the Court will apply these factors to the evidence adduced at trial. The two home invasions occurred approximately two weeks apart, at separate locations, and involved different participants. In addition, the evidence indicated that the Defendant targeted the home in the second robbery, and Co-Defendant Nickless Whitson targeted the home in the first robbery. For these reasons, the Court is persuaded that the Hobbs Act robbery conspiracy charged in Count One and the drug trafficking conspiracy charged in Count Three are separate and distinct from the Hobbs Act robbery conspiracy charged in Count Five and the drug trafficking conspiracy charged in Count Seven.

As for the conspiracies charged on the same date with the same participants, the object of each conspiracy is a different statutory offense - Hobbs Act robbery or drug trafficking. Thus, Counts One and Three are separate and distinct from each other, as are Counts Five and Seven. Applying the Sinito factors to the evidence adduced at trial, therefore, the Court concludes that the Defendant's four conspiracy convictions do not violate the Double Jeopardy Clause.

Next, the Defendant argues that two of his four convictions under 18 U.S.C. § 924(c)[1] violate the Double Jeopardy Clause and should be vacated. The Defendant contends that each home invasion robbery supports only one Section 924(c) count, even though each count charges a different predicate offense.

Count Two charged the Defendant with using, carrying, and brandishing firearms during and in relation to a crime of violence - conspiracy to commit Hobbs Act robbery - during the Lavergne robbery. Count Four charged the Defendant with using, carrying, and brandishing firearms during and in relation to a drug trafficking crime - conspiracy to possess with the intent to distribute cocaine - during the Lavergne robbery. Count Six charged the Defendant with using, carrying, brandishing, and discharging firearms during and in relation to a crime of violence - conspiracy to commit Hobbs Act robbery - during the Elmwood robbery. Count Eight charged the Defendant with using, carrying, brandishing, and discharging firearms during and in relation to a drug trafficking crime - conspiracy to possess with the intent to distribute marijuana - during the Elmwood robbery.

The Sixth Circuit has held that separate, predicate offenses that require proof of different facts can support separate convictions under 18 U.S.C. § 924(c):

Morales Angeles asserts that the testimony at trial established that he only used or displayed a gun on one occasion - when he initially abducted Garcia - and therefore only one, not both, of his convictions under 18 U.S.C. § 924(c) on Counts Three and Five can stand. The district court properly rejected this argument.

It is well-settled that a court may not impose more than one sentence upon a defendant for violations of section 924(c) which relate to but one predicate offense.' United States v. Sims, 975 F.2d 1225, 1233 (6th Cir.1992). However, [w]e have upheld multiple convictions and sentences under 18 U.S.C. § 924(c)(1) so long as such convictions are based on separate predicate acts.' United States v. Graham, 275 F.3d 490, 519-20 (6th Cir.2001); see also United States v. Burnette, 170 F.3d 567, 572 (6th Cir.1999) (It is now firmly established that the imposition of separate consecutive sentences for multiple § 924(c) violations occurring during the same criminal episode [is] lawful.'). The question we must answer then ...

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